M/s Express Projects Pvt. Ltd vs Manju

This Appeal has been filed by the Appellant against the order dated 25.03.2021 of the State Consumer Disputes Redressal Commission, Delhi (in short ‘State Commission’) in Appeal No.101/2017 and 01.02.2022 in EA/04/2022.

Case of the Complainant/Respondent is that she booked Floor/Apartment No.E/24/00 with the Appellant/Opposite Party in the housing project “Express Homz”, Express City, Sector-35, Sonepat, Haryana for a consideration of Rs.32,63,400/- Builder buyer agreement was executed between the Parties on 01.12.2011. As per the Agreement, possession of the Floor/Apartment was to be handed over within 30 months from the date of the Agreement. The Complainant paid an amount of Rs.34,65,586/- to the Opposite Party. On 21.02.2015, the Opposite Party sent offer of possession to the Complainant, alongwith a demand of Rs.4,61,988/-. The Complainant paid the said amount to the Opposite Party, after deducting the delay charges as mentioned in the letter dated 21.02.2015. The Opposite Party, however, failed to deliver the possession of the flat in question. Alleging deficiency in service on the part of the Opposite Party, a Consumer Complaint was filed before the State Commission with the following prayer: -

“a) Direct the OPs to hand over the possession of the Flat/Apartment bearing No.E/24/00 having super area of approximately 125 sq. meters after completing the same in all manner to the complainant within a month in accordance with law.

b) Direct the OPs to pay a sum of Rs.3,38,359/- to the complainants towards the loss suffered by the complainants towards rental paid by the complainants after June, 2014 due to delay in handing over the possession of the flat from 01.06.2014 till the date.

c) Direct the OPs to pay Rs.1,89,000/- @ Rs.5/- per sq. feet per month against the compensation for the said flat till date as per clause 31 of the Independent Floors/Apartment Buyer’s Agreement.

d) Direct the respondents to pay interest @ 18% on the amount deposited i.e. Rs.34,65,586/- (Rupees Thirty Four Lacs Sixty Five Thousand Five Hundred Eighty six Only) from the date of delay in handing of the possession to the complainants till the date of possession is handed over.

e) Direct the OPs to pay the compensation to the complainants towards the loss, mental torture and agony suffered by the complainants at the hands of the OPs as this Hon’ble Commission may think fit and proper in the interest of justice.

f) Direct the OPs to pay a sum of Rs.55,000/- to the complainants as cost of litigation charges.

g) Any other or further order in favour of the complainants and against the respondents as this Hon’ble commission deem fit and proper.”

Despite service of notice, the Opposite Party failed to file the written statement within the stipulated period. The State Commission, therefore, closed the right of Opposite Party to file the written statement. The Complaint filed the Evidence and Written Submissions.

The State Commission disposed the Complaint with the following observation: -

“Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party No.1 to refund the entire amount paid by the Complainant i.e. Rs.34,65,586/- along with interest as per the following arrangement:

A. An interest @ 6% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party No.1 till 25.03.2021 (being the date of the present judgment);

A. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party No.1 pays the entire amount on or before 24.06.2021.;

A. Being guided by the principles as discussed above, in case the Opposite Party No.1 fails to refund the amount as per the aforesaid clause (A) on or before 24.06.2021, the entire amount is to be refunded along with an interest @ 9% calculated from the date on which each instalment/payment was received by the Opposite Party No.1 till the actual realization of the amount.

In addition to the aforesaid and taking into consideration the fact of the present case, the Opposite Party No.1 is directed to pay the following sum to the complainant: -

A. Rs.2,00,000/- as cost for mental agony and harassment to the complainant; and

B. The litigation cost to the extent of Rs.50,000/-.”

Since the Opposite Party failed to comply the order dated 25.03.2021, the Complainant filed EA/04/2022 before the State Commission. The Executing Court, vide order dated 01.02.2022, issued warrants of attachment of property of the Opposite Party. Order dated 01.02.2022, reads as follows: -

“11. From the judgment of this Commission dated 09.08.2021, it is clear that reasonable time was granted to the Judgment Debtor to make the payment, however, despite that opportunity, the Judgment Debtor has failed to do the needful. In the given circumstances, we are of the view that the warrants of attachment need to be issued in the present case.

Issue warrants of attachment of the properties of an amount of Rs.99,21,408/- (approx..), executable through the concerned person mentioned below:

NATURE OF PROPERTY

DETAILS OF THE PROPERTIES

EXECUTABLE THROUGH

Immovable Property

810, Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi

SHO, Kasturba Gandhi Marg, New Delhi

H.No. 139, Sector-63, Gautam Budh Nagar, Noida, UP

Express Homz, Express City, Sector-35, Sonepat, Naryana

SSP, Gautam Budh Nagar, Noida

SSP, Sonepat

Bank Accounts

Escrow Account No.50027914014, Allahabad Bank, Connaught Place, New Delhi

Bank Manager, Allahabad Bank, Connaught Place, New Delhi

Warrants of attachment shall be issued by concerned official within 3 days from the date of this order.

The warrants shall be returnable before the next date of hearing along with the necessary action taken by the concerned official.

List on 02.03.2022.”

Aggrieved by the impugned orders dated 25.03.2021 and 01.02.2022, the Appellant/Opposite Party has filed the instant First Appeal with the following prayer: -

“It is, therefore, most humbly prayed that this Hon’ble Commission be graciously pleased to:

a. set aside the impugned order dated 25.03.2021 passed by the Hon’ble State Commission, New Delhi in Complaint No.101 of 2017;

b. set aside the order dated 01.12.2022 passed by the Hon’ble State Commission, New Delhi in Execution No.04/2022 in Complaint No.101 of 2017 attaching the property for an amount of Rs.99,21,408/- (approx.) of the Appellant; and

c. Pass such other order or order(s) as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”

Heard the Learned Counsel for the Appellant and carefully perused the record. Learned Counsel for the Appellant submitted that the impugned order was passed in violation of the principles of natural justice and due process. The State Commission did not provide an opportunity to the Appellant to present their case. The State Commission failed to appreciate that the Complaint filed by the Complainant was nothing but an abuse of process of law. It was submitted that the impugned orders be set aside and the Appeal allowed.

The Appellant alleged that the State Commission did not follow the principles of natural justice. However, from the record, it is seen that the Appellant did not bother to file the written statement within the time period specified in the Act and therefore right to file written statement of the Opposite Party was closed by the State Commission. In this regard, para 3 of the impugned order dated 25.03.2021 is relevant, which reads as follows: -

“During the course of the proceedings, notice was issued to the Opposite Parties on 10.02.2017 and the counsel for the opposite parties appeared on 28.07.2017. copy of the complaint was supplied to the counsel for the Opposite Parties on 28.07.2017 and direction was given to file written statement. However, despite direction Opposite Parties failed to file the written statement within the stipulated period. In pursuance of this, the right of the Opposite Parties to file written statement stood closed vide order dated 12.01.2018.”

From the above, it is clear that the State Commission gave ample Opportunity to the Appellant/Opposite Party to file the written statement. When the Opposite Party failed to file the same within the stipulated period, right to file written statement was duly closed.

On merits, the Agreement between the Parties was executed on 01.12.2011. Possession of the flat was to be handed over within 30 days from the date of execution of the Agreement i.e. upto June, 2014. Till the date of the impugned order i.e. 25.03.2021 the possession of the flat was not handed over to the Complainant. The State Commission relied on the judgment of Hon’ble Supreme Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. 2020 (3) RCR (Civil) 544 wherein it was held as follows: -

A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression „service in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e) , the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.

Further, in Aashish Oberai vs. Emaar MGF Land Ltd. I (2017) CPJ 17 (NC) Hon’ble Supreme Court held as follows: -

“Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

From the aforesaid judgments of the Hon’ble Supreme Court, deficiency in service on the part of the Appellant/Opposite Party is established. In the instant case, the Opposite Party failed to deliver the possession of the flat even after expiry of about 10 years. The State Commission, therefore, directed the Appellant to refund the deposited amount with interest @ 6% p.a. and Rs.2 lakhs as cost for mental agony and harassment and Rs.50,000/- as litigation expenses.

As far as impugned order dated 25.03.2021 is concerned, The Appellant failed to point out any illegality or irregularity in the same.

Now, we proceed to discuss the impugned order dated 01.02.2022 passed in the execution proceedings, which reads as follows: -

“From the judgment of this Commission dated 09.08.2021, it is clear that reasonable time was granted to the Judgment Debtor to make the payment, however, despite that opportunity, the Judgment Debtor has failed to do the needful. In the given circumstances, we are of the view that the warrants of attachment need to be issued in the present case.”

Reading of the above shows that the reasonable time was given to the Judgment Debtor to satisfy the decree despite that they failed to comply. Due to non-compliance of the decree by the Judgment Debtor, the Executing Court issued the warrants of attachment. The argument of the Appellant/Judgment Debtor that the Executing Court did not provide an opportunity to the Appellant is rejected. While issuing the warrants of attachment, the Executing Court passed a detailed order. It was observed that “ the Decree Holder was not able to enjoy the fruits despite the fact that the State Commission allowed the Judgment Debtor to make good of his wrongs. ” The Appellant alleged that the Executing Court had not followed the procedure and issued the warrants of attachment in a hasty manner. Regarding the procedure, the Executing Court referred to Section 71 of the Consumer Protection Act, 2019, which reads as follows: -

“Every order made by a District Commission, State Commission or the National Commission shall be enforced by it in the same manner as if it were a decree made by a Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, applicable, subject to the modification that every reference therein to the decree shall be construed as reference to the order made under this Act”

The State Commission relying on Section 71 of the Consumer Protection Act, 2019 issued the warrants of attachment. The Appellant/Opposite Party has to satisfy the decree and submit compliance report with the Executing Court. Instead of satisfying the decree, the Appellant has chosen to approach this Commission.

For the foregoing discussion, the Appellant failed to point out any illegality or infirmity in the impugned orders warranting interference in exercise of Appellate jurisdiction. The Appeal is accordingly dismissed.